The opinion of the court was delivered by: Bua, District Judge.
The plaintiffs brought the instant case in the Circuit Court
of Cook County against Armour, Worthington, and Swift alleging
that the defendants packaged and sold hog intestines as pork
chitterlings, which plaintiffs purchased, in containers which
were labeled as containing ten pounds of meat but which, in
fact, contained a lesser quantity of meat. The two-count
complaint charges that in so doing, defendants have violated
the Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat.
ch. 121 1/2, ¶ 261 et seq. (1981), and the Uniform Deceptive
Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 311, et seq.
(1981). The cause was removed to this Court by defendants.
28 U.S.C. § 1441. Presently before the Court is the defendants'
Motion to Dismiss for failure to state a claim. For the reasons
stated herein, the Motion to Dismiss is denied.
Jurisdiction over the instant matter is properly based on
diversity of citizenship between the parties. 28 U.S.C. § 1332.
The amount in controversy exceeds the jurisdictional minimum.
In their Motion to Dismiss, defendants contend that the
state statutes under which plaintiff has sued cannot be
applied to the case at bar since federal law has preempted the
field of the regulation of meat in the Federal Meat Inspection
Act as amended by the Wholesome Meat Act (hereinafter referred
to as "the Act"). 21 U.S.C. § 601 et seq. Further, defendant
contends that even if plaintiffs sought to pursue the instant
matter under federal law, it would be powerless to do so as no
private right of action exists under the Act.
It is the considered opinion of this Court that defendant is
correct in its assertion that no private right of action
exists under the Act. However, for the reasons set out herein,
plaintiff may bring suit under the Consumer Fraud and
Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 261 et
seq. (1981) and the Uniform Deceptive Trade Practices Act,
Ill.Rev.Stat. ch. 121 1/2, ¶ 311 et seq. (1981). In so doing,
however, the standards which shall be applied are those set out
by federal law.
I. The Private Right of Action
It is plainly the law of this Circuit that no private right
of action exists under the Act. In Pacific Trading Company v.
Wilson & Co., Inc., 547 F.2d 367 (7th Cir. 1976), the Seventh
Circuit upheld the district court in concluding that no private
right of action exists under federal law in this area. The
Court based its conclusion on the rationale set out by District
Judge Lynch whose opinion was appended to the Seventh Circuit's
decision. According to Judge Lynch,
The Federal Meat Inspection Act has as its stated
purpose, the enforcement of standards throughout
meat packing plants. Cudahy Packing Co. v. McBride,
92 F.2d 737 (8th Cir. 1937). Toward this end
Congress has vested the Secretary of Agriculture
with powers of inspection. Brougham v. Blanton Mfg.
Co., 249 U.S. 495, 39 S.Ct. 363, 63 L.Ed. 725
In the instant case plaintiffs, as private
individuals, have brought suit for money damages.
This Act makes no such provision for suits by
private individuals. In addition, 21 U.S.C. § 676
provides for imprisonment and fine but not
for the award of civil damages . . .
From the foregoing there can be no dispute that plaintiffs
could not have brought the instant suit under the Act. They
are not, however, without remedy as the instant suit could be,
and indeed was, properly brought under state law.
II. Federal Preemption of the Field
While the state laws sued under create general causes of
action for fraud and deception, the federal and state statutes
here under consideration are quite explicit in explaining the
effect of conflicting or ...